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[2019] ZALCJHB 135
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Jacobie v Public Health and Social Development and Others (JR1291/16) [2019] ZALCJHB 135 (10 June 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
1291/16
In
the matter between:
DEAN LEONARD
JACOBIE
Applicant
and
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
First
Respondent
SECTORAL BARGAINING
COUNCIL
DIALWA
MATHALA
N.O
Second
Respondent
DEPARTMENT
OF HEALTH – GAUTENG Third
Respondent
Heard
:
26
February 2019
Delivered
:
10 June 2019
Summary:
Application to review and set aside an arbitration award-Arbitrator
found to have carried out his
duties in assisting an unrepresented
employee, no misconduct on the part of the Arbitrator. Award not
reviewable.
JUDGMENT
RAPHULU, AJ
Introduction
[1]
The Applicant was employed by the Third Respondent as a Switchboard
Supervisor.
In May 2012, the Applicant was charged with various acts
of misconduct, which he was found guilty of, and was dismissed in
October
2012. The Applicant appealed against his dismissal, and the
outcome of his appeal, maintaining that his dismissal, was issued in
September 2014. The Applicant referred an unfair dismissal dispute to
the Commission for Conciliation, Mediation and Arbitration
(CCMA).
[2]
The first CCMA arbitration sitting was scheduled to take place on 10
July
2015. On that day, the Applicant was represented by an attorney.
However, the Third Respondent’s representative was ill and
unable to attend and, as a result of this, the arbitration
proceedings were postponed to 3 and 4 September 2015, respectively.
[3]
On 3 September 2015, the Applicant’s attorney did not appear at
the arbitration proceedings. The Applicant’s contention is that
he was not aware that his attorney would not be present.
[4]
Despite the absence of the Applicant’s attorney, the matter
proceeded,
with the Applicant representing himself.
[5]
On 6 October 2015, the Second Respondent issued an arbitration award,
finding that the dismissal of the Applicant was both substantively
and procedurally fair.
Grounds
of review
[6]
The Applicant has raised three grounds of review / issues to be
determined
by this Court as follows:
6.1
Whether the refusal to postpone the arbitration proceedings in the
absence of the Applicant’s
legal representative was reasonable
or not;
6.2
Whether the Applicant had sufficient time to prepare and secure the
services of an employee representative;
and
6.3
Whether the Applicant’s dismissal was accordingly procedurally
and substantively fair.
[7]
The basis for seeking to review and set aside the arbitration award
is
that the Applicant was not legally represented at the arbitration
proceedings, whereas the Third Respondent was legally represented.
[8]
The question is whether, by not postponing the matter and proceeding
with
the arbitration on a day when the Applicant’s legal
representative was not present, the Second Respondent committed an
irregularity
warranting the resultant arbitration award to be
reviewed and set aside.
[9]
The Applicant contends that the proceedings were postponed on a
previous
occasion when the Third Respondent’s representative
was ill and unable to attend, but that the same was not done for the
Applicant when his legal representative was not present.
[10]
The Applicant, at paragraph 6.3 of his Founding Affidavit, states
that the Second Respondent
noted his attorney’s absenteeism,
but requested that the hearing should continue. The Applicant
contends that he was not
mentally prepared and not up to the
challenge to face his previous employer’s representatives, whom
were both “seasoned
labour employers”.
[11]
At paragraph 6.7 of his Founding Affidavit, the Applicant contends
that considerations
regarding his attorney not being present should
have been applied by the arbitrator, whereby a postponement would
have been justified.
[12]
The Third Respondent, in its Opposing Affidavit, denies the
Applicant’s contentions,
and states that at the arbitration
proceedings, the Applicant did not raise the issue of postponing the
proceedings because his
attorney did not arrive with the Second
Respondent, and he seemed to have been content with proceeding
without any legal representation.
[13]
The Applicant states, in his Heads of Argument, that the Second
Respondent refused to grant
him a postponement. The Third Respondent
contends in its Heads of Argument that the record of the arbitration
proceedings does
not show that the Applicant made submissions asking
for a postponement, that this issue is not dealt with in the
Applicant’s
Founding Affidavit and yet it appears in the
Applicant’s Heads of Argument. The Third Respondent contends
that the Applicant
is precluded from advancing submissions on points
that were not included in the Founding Affidavit and are further
nowhere to be
found on the record of the arbitration proceedings, as
doing so is prejudicial to the Third Respondent. The Third Respondent
further
contends that the Applicant should have either: (i)
supplemented his review application to include averments relating to
the issue
of the postponement of the proceedings; or (ii) raised this
issue upfront so that the record of the arbitration proceedings could
have been reconstructed, or (iii) clarified with the arbitrator by
requiring the arbitrator to submit a statement confirming whether
or
not there was an application for a postponement.
Procedural
defects
[14]
Errors
by an arbitrator, in the conduct of the arbitration proceedings,
render an arbitration award procedurally unfair and such
errors are
actionable on review as a form of misconduct or gross irregularity.
Such misconduct or irregularities prevent a party
from having its
case fairly heard or prevent a fair trial of the issues. These are
not subject to the
Sidumo
v Rustenberg Platinum Mines Ltd
[1]
test.
[2]
Legal
representation
[15]
Our case
law has held that where the arbitrator should have afforded legal
representation but did not, that is a reviewable irregularity.
[3]
[16]
It is
accepted that a proper regard to the comparative abilities of the
parties should be had and the discretion whether or not
to allow
legal representation should be exercised judicially, and that the
arbitrator must ensure that the playing fields are level,
or at least
not unreasonably bumpy.
[4]
[17]
On the facts of this case, the Applicant was allowed legal
representation, but his representative
did not arrive, and the matter
proceeded with him not being legally represented.
[18]
There is nothing in the record of the proceedings to show that the
Applicant asked for
the matter to be postponed on the day that his
legal representative did not arrive. Further, there is no evidence
that the Second
Respondent refused to grant the Applicant a
postponement.
[19]
For instance, page 25 of the paginated pages of the record shows, at
line 4 to 5, the Applicant
stating that he is very disappointed in
his lawyer. However, this does not show him asking for a
postponement, or even asking for
the matter to stand down while he
prepares himself.
[20]
Without any evidence of an application or request for a postponement,
there are no grounds
on which I can rationally conclude that the
Second Respondent failed to exercise his discretion judicially. The
Second Respondent
cannot be shown to have been asked to exercise his
discretion, and it follows, that he cannot be shown to have failed to
exercise
his discretion.
Other
procedural defects at the CCMA
[21]
The Applicant also raises the issue of whether or not he had
sufficient time to prepare
and secure the services of an employee
representative. Again, this goes to the question of whether the
Applicant asked for the
matter to be postponed so that he could
secure the services of an employee representative. The record of the
CCMA proceedings does
not show this.
[22]
The record of the CCMA proceedings, at page 24 of the paginated
papers, line 1 to 3, and
line 25, as well as page 25 line 1 to 3,
show the Second Respondent assisting the Applicant where the
Applicant needed assistance,
as one would expect in relation to a
person representing themselves.
Procedural
fairness of the dismissal
[23]
It is apparent that the procedural fairness of the Applicant’s
dismissal was not
an issue before the Second Respondent at the
arbitration proceedings. The Applicant contends that had he known
that the CCMA proceedings
were a hearing
de novo
, he would
have raised procedural fairness, and put this issue before the Second
Respondent. By going ahead and representing himself,
the Applicant
ran the matter as he chose, and this is something that the Applicant
cannot now want to blame on the Second Respondent.
Substantive
fairness
[24]
Having considered the charges against the
Applicant, the Second Respondent’s consideration of the
evidence presented to him,
as well as the Second Respondent’s
findings on the charges, I am of the view that the Second Respondent
reached a decision
that a reasonable decision maker would reach in
the circumstances.
[25]
In particular: the fact of the Applicant’s
conduct in running a money lending scheme at the workplace during
working hours;
the Applicant’s own admission of this at the
proceedings, as well as admitting that he was doing so without
permission from
his employer; the fact that the Applicant himself
instilled discipline in relation to his subordinates; that there were
employee
threats at the workplace as a result of the monies owed,
resulting in the police being called; and the fact that the
Applicant’s
allegations that he was being targeted and charged
with misconduct only after the Third Respondent found out that he
reported fraud
were found to be baseless; and there is nothing before
this Court to point me to a conclusion that the Second Respondent
reached
a decision that a reasonable decision maker would not reach
in the circumstances.
[26]
I therefore do not find misconduct or gross irregularity by the
Second Respondent in relation
to the procedural aspects, and in
relation to substance, my view is that he made a decision that falls
within the reasonableness
test.
[27]
Accordingly, I make the following order:
Order
1.
The
Applicant’s review application is dismissed.
2.
There
is no order as to costs.
_______________________
L Raphulu
Acting
Judge of the Labour Court of South Africa
Appearances
For the
Applicant:
Jayshree Juglal Inc
For
the Third Respondent: Mncedisi Ndlovu and Sedumedi Inc
[1]
(2007)
28 ILJ 2405 (CC).
[2]
See:
Toyota
SA Motors (Pty) Ltd v CCMA
[2016] 3 BLLR 217
(CC) paras 105 and 192;
Kievits
Kroon Country Estate (Pty) Ltd v Mmoledi
[2014] 3 BLLR 207
(LAC) at par 20;
BAUR
Research cc v CCMA
[2014] 4 BLLR 374
(LC) at par 18;
Walters
v CCMA and Another
[2016] ZALCCT 48 (LC) at par 23.
[3]
BAUR
(supra
)
at par 18;
Colyer
v Essack NO
(1997) 18 ILJ 1381 (LC) 1384;
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman N. O.
(2013) 34 ILJ 2347 (LC) paras 38-39;
Walters
(
supra
)
par 24.
[4]
Walters
(supra) at
par
31.